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TWN
Info Service on UN Sustainable Development (Jul21/09) We are pleased to share with you a new TWN report titled: Proposal for a WHO treaty on pandemics raises concerns by Nithin Ramakrishnan and K M Gopakumar. A group of countries at the World Health Organization has called for negotiations of a new international agreement on pandemic preparedness and response. The authors review the existing legally binding International Health Regulations (IHR) 2005 and provide key reasons for the fragmentation of global health emergency response. They argue that a globally co-ordinated preparedness and response to pandemics is essential and can be sufficiently dealt with under IHR 2005. They conclude that “Instead of spending time and resources on a new pandemic framework convention/treaty the WHO Members States need to spend their scare resources on reforming the IHR and ensuring its effective implementation”. Meanwhile, the first meeting of a WHO Working Group tasked to explore this issue will take place on 15-16 July in Geneva. Below is an article on the forthcoming meeting with some questions raised on the need for such an agreement that is proposed for future pandemics, and the feasibility of any negotiations in the midst of the ongoing COVID-19 pandemic. With
best wishes, WHO:
Working Group to hold discussions on pandemic treaty possibility Geneva/New Delhi, 13 Jul (Nithin Ramakrishnan* and K M Gopakumar**) – The WHO Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (Working Group) is tasked to examine the possibilities of developing a new international instrument on pandemic preparedness and response. The first meeting of the Working Group will take place on 15-16 July at the WHO Headquarters in Geneva. This Working Group was set up under the World Health Assembly Resolution 74.7 (WHA 74.7) to consider the findings and recommendations of the various committees formed to review the performance evaluation of WHO’s Covid-19 pandemic response. A separate decision (WHA 74.16) entrusts the same Working Group to assess the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response and to submit a report for the consideration of a WHA Special Session to be convened in November 2021. Thus, the Working Group has two mandates. The decision is a compromise reached on an earlier draft decision proposed by a group of countries known as Friends of the Pandemic Treaty. That draft had proposed to launch treaty negotiations. The compromise reached through negotiations during the WHA session in May 2021 postponed such a decision to the WHA Special Session to be convened solely for assessing the benefits of a new instrument on pandemics. Currently, no documents related to the Working Group meeting are available in the public domain except the provisional agenda. The provisional agenda sets the following work program: 1. Opening of the session and election of the Officers. 2. Adoption of the agenda and method of work. 3. Prioritization of the assessment of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response and preparation of a report to be considered at the special session of the Health Assembly. 4. Consideration of the findings and recommendations of the Independent Panel for Pandemic Preparedness and Response, the IHR Review Committee and the Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme, taking into account relevant work of WHO, including that stemming from resolution WHA 73.1 (2020) and decision EB 148 (12) (2020), as well as the work of other relevant bodies, organizations, non-State actors and another relevant information. 5. Report with proposed actions for the WHO Secretariat, Member States, and non-State actors, as appropriate, for consideration by the Seventy-fifth World Health Assembly through the Executive Board at its 150th session. 6.Closure of the session. The above work program raises concerns as it is illogical to prioritize the assessment of the benefits of any particular type of legal instrument before analysing the substantive and practical concerns that need to be addressed in pandemic preparedness and response. Operational Paragraph 1 (OP 1) of WHA Decision 74.16 reads: “… the Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies to prioritize the assessment of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response and to provide a report to be considered at the special session of the Health Assembly”. This mandate cannot logically be carried out without examination of the various panel reports and an assessment whether there is a legal vacuum in the existing pandemic preparedness and response. Pursuant to WHA Resolution 73.1 adopted in 2020, the WHO had initiated three processes to study the functioning of the WHO and the international health response to COVID-19 viz. the Independent Panel for Pandemic Preparedness and Response (IPPPR), the Review Committee on the Functioning of the International Health Regulations 2005 during the COVID-19 Response (IRC 2021) and the Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme (IOAC 2021). The Working Group should actually study the various findings and recommendations of these three committees/ panels to understand if anything went wrong during COVID-19 pandemic response and to identify the deficiencies of the existing institutions, mechanisms and their functioning. It should then discuss the way ahead after a thorough deliberation on the findings and recommendations of these committees/panels before analysing the benefits of adopting a new treaty. Though WHA decision 74.16 has mandated to prioritize the process of discussion of the possibilities of a new international instrument, the Working Group is still capable of carrying out its mandate in a logical manner. However, the provisional agenda of the Working Group is not particularly encouraging on this front. It treats the two mandates as mutually exclusive pillars, while in substance they are sequential, with one issue leading to the other. A source revealed to the authors that the bureau established to coordinate the work of the Working Group has proposed to form two sub-groups/working committees, one on the mandate under Resolution 74.7 and the other on the pandemic treaty, the mandate under Decision 74.16. This casts doubt on how issues that overlap and are consequential to each other will be dealt with. Examples include access to healthcare, strengthening of WHO, and the financing of emergency response. The Working Group is headed by two co-chairs. Indonesia is reportedly designated as one of the co-chairs, while the United States and France are competing for the second co-chair position. While both the sub-groups are open to all the Member States, of particular concern is that the delegations from developing countries often do not have adequate officials to attend parallel or back-to-back meetings. The pandemic has been devastating for many of these nations, and they are not in a position to adequately spare experts and delegations to the Working Group. Travel to Geneva is clearly not an option for almost all developing and least developed countries. The first meeting of the Working Group is expected to take a decision on the creation of the sub-groups. It must be noted that there are no concrete proposals yet on the table on strengthening global health governance or the WHO. What is available is a blank proposal for a framework convention under Article 19 of the WHO Constitution. None of the committees, which have submitted recommendations to the 74th session of WHA that took place in May 2021, has made any proposals on enhancing the norms of international health law in general, or pandemic response in particular. They have not discussed any innovative financing mechanisms, better knowledge and technology transfer clauses for health purposes, or the need for better human rights compliance of the global and national pandemic response. These are real needs of the Third World peoples and the developing countries. The current law regulating pandemic management and response, the International Health Regulations (IHR) of 2005, already provides the framework for all the above, and what is needed is better clarity on the implementation of the regulations and the normative underpinnings of the same. A framework convention is a weak tool to achieve the same objectives. It means more and more negotiations. A framework convention is basically a treaty for treaty negotiations. It is an instrument with broad indicators as to the future directions of negotiations. In short, a new “Global Pandemic Treaty” is a tomorrow’s empty promise while massive human suffering is going on in the ongoing COVID-19 pandemic. The frequently asked questions (FAQ), which was circulated in early May 2021, by the Friends of the Pandemic Treaty, admits that a new treaty is actually for more political visibility. The FAQ also claims that the IHR will be the cornerstone of the proposed new pandemic treaty. This is not useful unless the new instrument to be adopted sets out the implementation plans for the obligations in the IHR. Thus, there is no clarity with regard to the added normative value of the proposed pandemic treaty. It is yet to be ascertained which Member States are going to lead the consultations in the Working Group. However, the Friends of the Pandemic Treaty, a group which had actually pushed for the treaty solution much ahead of the World Health Assembly, seems to be all set to lead the negotiations. Since most of the consultations are going to be within the working group and the WHA mandate for the Working Group has also limited the consultation to its membership (OP 4), there will be lesser transparency about what happens behind the doors. [OP 4 of WHA 74.7 reads: “that the Co-Chairs and Vice-Chairs shall facilitate the work of the Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies in close dialogue with its membership;”] If a framework convention is ascertained to be beneficial for the future pandemics, will IHR 2005 have any relevance? This and many questions remain unanswered. (*Nithin Ramakrishnan is an international lawyer based in Kochi, India **K M Gopakumar is a TWN Senior Researcher and Legal Advisor based in New Delhi, India)
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